FIRST SECTION
Application no. 27310/09
Ljubica UDOVIČIĆ
against Croatia
lodged on 29 April 2009
STATEMENT OF FACTS
The applicant, Ms Ljubica Udovičić, is a Croatian national, who was born in 1950 and lives in Križevci.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
A part of the house where the applicant has been living since 1991 with her family, is occupied by a bar, run by company O., and its predecessor company F., since August 2002.
1. Administrative proceedings concerning the operation permit to run a bar in the applicant’s house
On 30 August 2002 the Koprivničko-Križevačka County Office of the State Administration (Ured državne uprave u Koprivničko-križevačkoj županiji; hereinafter: the “County Office”) granted company F. a permit to run a bar in the applicant’s house.
Since the applicant was unable to participate in the administrative proceedings granting company F. the operation permit, she lodged a request with the County Office for reopening of the proceedings and on 18 June 2003 her request was dismissed.
Against the above decision the applicant lodged an appeal with the Ministry of Tourism (Ministarstvo turizma; hereinafter: the “Ministry”) and on 17 September 2003 the Ministry quashed the decision granting the permit and ordered that the applicant be allowed to participate in the administrative proceedings.
On 22 February 2004 the County Office again dismissed the applicant’s request for the reopening of the proceedings and this decision was upheld by the Ministry on 22 April 2004. On an unspecified date in 2004 the applicant lodged an administrative action against the above decisions with the Administrative Court (Upravni sud Republike Hrvatske) and the Administrative Court quashed them on 15 May 2008.
In the meantime, on 28 October 2005 the County Office issued a new operation permit to run a bar to company O.
On an unspecified date in 2005 the applicant lodged an appeal against the above decision and on 22 December 2005 the Ministry dismissed her appeal.
The applicant brought an administrative action in the Administrative Court and on 17 December 2009 the Administrative Court quashed the decision of the Ministry and ordered that the case be re-examined.
It appears that the proceedings are still pending.
2. The applicant’s complaints to the sanitary inspector
On 4 May 2005 the applicant complained about the level of noise coming from the bar to the sanitary inspector and the Ministry of Health and Social Affairs (Ministarstvo zdravstva i socijalne skrbi; hereinafter: the “Ministry of Health”).
On 12 March 2008 the sanitary inspector dismissed the applicant’s complaint as ill-founded.
During the proceedings the sanitary inspector obtained an expert report drawn up by company B.I. on 21 January 2008 which found that the level of noise had exceeded the permitted level. However, a report drawn up by company EK. of 5 March 2008 and an additional report by company B.I. of 7 March 2008 found that the level of noise had not exceeded the permitted level.
On 15 March 2008 the applicant obtained a noise expert report drawn up by company G.-I. This report found that the level of noise in the applicant’s flat had exceeded the permitted level.
Following the report, the applicant lodged an appeal against the above decision of the sanitary inspector with the Ministry of Health.
On 28 April 2008 the Ministry of Health dismissed the applicant’s appeal as ill-founded.
On an unspecified date in 2008 the applicant lodged a further administrative action in the Administrative Court.
On 24 November 2008 company O. obtained an expert report drawn up by company EL. which found that the part of the applicant’s house occupied by the bar had not satisfied the noise isolation requirements.
On 22 September 2011 the Administrative Court quashed the decision of the Ministry of Health of 28 April 2008 and ordered re-examination of the case on the ground that the decision had been based on the contradictory expert reports.
It appears that the proceedings are still pending.
3. Civil proceedings instituted by the applicant
In 2006 the applicant lodged a civil action in the Križevci Municipal Court (Općinski sud u Križevcima) against company O. seeking a restraining order from any further emissions from the bar.
During the proceedings an expert report was commissioned which found that the level of noise had not exceeded the permitted level. The applicant complained that the measurement had been conducted only in the premises of company O. and not in her flat and asked that a number of witnesses be heard in that respect and that another report be commissioned.
On 10 April 2007 the Križevci Municipal Court dismissed the applicant’s civil action on the ground that the expert report showed that the level of noise had not exceeded the permitted level and that the other evidence from the case file showed that there had been no other emissions on the applicant’s flat. As to the applicant’s request to hear the witnesses, that court held that all relevant facts had been sufficiently established and that there had been no need to take further evidence in respect of the level of noise.
The applicant lodged an appeal against the above judgment before the Križevci County Court (Županijski sud u Križevcima) on an unspecified date in 2007.
On 27 March 2008 the Križevci County Court dismissed the applicant’s appeal against the Križevci Municipal Court’s judgment.
On 28 May 2008 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the judgment of the Križevci County Court reiterating her arguments that her private life, home and her property had been interfered with by company O.
On 16 October 2008 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded.
4. The applicant’s other complaints
In the period between 2002 and 2006 the applicant requested the intervention of the police on 107 occasions concerning the noise and other emissions from the bar run by company O.
She also complained about the inactivity of the domestic bodies to the Križevci Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Križevcima), the Central Inspectorate Office (Državni Inspektorat) and the Office of the Prime Minister of the Republic of Croatia, contending that the level of noise adversely effects her dignity, her private and family life and the respect for peaceful enjoyment of her possessions.
COMPLAINTS
The applicant complains, under Article 6 of the Convention, about the lack of fairness of the civil proceedings in that the domestic courts did not adequately answered her objection as to the results of the expert report and also dismissed her request to hear a number of witnesses who could confirm the alleged flaws in the noise measurements in connection with the commissioned noise expert report.
She further complains, under Article 8 of the Convention, that her right to respect for her home and her private and family life has been violated and, under Article 1 of Protocol No. 1, that her right to peaceful enjoyment of her possessions has been violated.
The applicant also invoked Article 5 § 1 of the Convention complaining that her private and family life have not been respected.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did the domestic courts in the civil proceedings sufficiently examine the applicant’s objections concerning the noise measurements and did they provide a reasoned decision in that respect?
2. Has there been a violation of the applicant’s right to respect for her home or private life in the present case, contrary to Article 8 of the Convention (see Oluić v. Croatia, no. 61260/08, 20 May 2010)?
3. Has there been in the present case a violation of the applicant’s right to peaceful enjoyment of her possessions, contrary to Article 1 of Protocol No. 1?
The Government are invited to submit all relevant measures and decisions adopted in respect of the applicant’s complaints about the excessive noise level in her flat.
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